Schwartz v. Wagner

ROBERT C. MURPHY, Judge (retired), Specially Assigned. The question presented by the appellant Robin (Wagner) Schwartz (Robin) is as follows: Whether the body attachment, issued by the [Circuit Court for Carroll County] to incarcerate appellant for failure to pay the $2,433.50 purging provision of an order finding her in contempt for failure to pay child support, was properly issued where no hearing was held to determine present ability to pay the purging provision. The determination of this issue necessitates review of certain events preceding the present appeal in the long-enduring domestic litigation between Robin and Richard B. Wagner (Richard), her former husband, as hereinafter set forth in an earlier opinion of this court involving the same parties, namely Wagner v. Wagner (Wagner I), 109 Md.App. 1 , 674 A.2d 1 (recons.denied)(1996). The parties were married on February 16, 1979; two children were born of the marriage, Kris and Erika.

In 1986, ⁷²² Robin declared her desire that the parties divorce and she initiated a separation by leaving the marital home with her then two-year-old daughter Erika. Richard filed a complaint for immediate custody of both children as a result of which Erika remained with Robin and Kris with Richard. A five-day trial on the merits of the parties’ various complaints began on May 16,1988 before the Circuit Court for Carroll County, with testimony being heard from nineteen witnesses. At the conclusion of the hearing, Richard was granted a divorce a vinculo matrimonii on grounds of desertion, the court having found Robin to be at fault in the demise of the marriage.

Thereafter, there was a steady stream of post-divorce pleadings filed by both parties concerning child custody, visitations and allegations of sexual abuse and violence on Richard’s part. Richard filed numerous complaints against Robin which, among other things, alleged that she planned to leave Maryland with Erika without his consent. Robin was permitted to retain custody of Erika expressly conditioned, however, upon her continued residence in Maryland. In December of 1989, the court approved an agreement between the parties, permitting Robin to move to Colorado with Erika.

It also established a visitation schedule. On July 5, 1990,’ Richard filed a complaint alleging Robin’s failure to adhere to the agreement. On January 18, 1991, Richard sought an order for child support from Robin. These complaints and motions were followed by numerous others growing out of the ongoing litigation, including an allegation by Robin that Richard had sexually abused Erika.

Thereafter, there was a spate of motions concerning the proper jurisdiction in which they were to be filed which was resolved in favor of jurisdiction in the Maryland courts. On February 5, 1992, a trial ensued on various issues, including child support. On April 2, 1992, the trial court ordered that Richard be given immediate custody of Erika. In April, 1992, Richard located Robin and Erika at a women’s shelter in California.

Through further court proceedings, Richard effected the return of Erika to Maryland. ⁷²³ Robin subsequently returned to Maryland and filed a petition for visitation. On May 7, 1993, the trial court issued an order requiring Robin to pay $1180 per month in child support, but this was suspended a month later after it was determined that she had been laid off from work; however, the court further ordered that the child support was to resume once Robin secured other employment, or it was found that she voluntarily impoverished herself to avoid making child support payments. On July 20, 1993, Richard filed a petition to hold Robin in contempt for failing to pay the court-ordered child support, she having obtained employment in the interim period. In November, 1994, Richard’s petition for contempt arising from Robin’s non-payment of child support resulted in the trial court’s determination that Robin had voluntarily impoverished herself to avoid paying child support.

The trial court did not, however, hold Robin in contempt of its earlier child support order because at that time it was unclear whether she had realized any income from her new job. The court, instead, reduced Robin’s child support obligation to $1,011.10 per month. Upon Robin’s appeal to this court, we summarized the Maryland law governing voluntary impoverishment in a child support context. In Wagner I, supra, which we decided on February 6, 1996, the issue before us, among seven others, was whether the trial court erred when it ruled that Robin had voluntarily impoverished herself.

We said that in determining a parent’s child support obligation, the courts take into consideration the parent’s actual income, if the parent is employed, and potential income if the parent is voluntarily impoverished. 109 Md.App. at 42 , 674 A.2d 1 . We said that once a parent is found to be voluntarily impoverished, his or her potential income will be determined by the parent’s employment potential and probable earnings level based on, but not limited to, recent work history, occupational qualifications, prevailing job opportunities and earnings levels within the community. Id. at 42-43 , 674 A.2d 1 . ⁷²⁴ We noted that in the present ease, the trial court found that upon Robin’s return to Maryland from California, she easily obtained employment, earning approximately $60,000 per year; that she thereafter contracted with the RKE Corporation on June 20, 1993 to provide her services for approximately $20,000 per year; that RKE was a corporation in which she had an interest and the power to participate in management decisions. Robin’s underemployment, the trial court said, significantly hindered her ability to meet her child support obligation, justifying its conclusion that she was voluntarily impoverished.

Citing Wills v. Jones, 340 Md. 480 , 667 A.2d 331 (1995), we observed in Wagner I that the Court of Appeals concluded that the legislature intended that the parent’s support obligation can only be based on potential income when the parent’s impoverishment is intentional. We further noted that in Wills , the Court of Appeals said that in determining whether a parent is voluntarily impoverished, the question is whether a parent’s impoverishment is voluntary, not whether the parent has voluntarily avoided paying child support. 340 Md. at 496 , 667 A.2d 331 . The Court further held in Wills that the parent’s intention regarding support payments is irrelevant; rather, the focus is upon whether parents who impoverish themselves with the intention of avoiding child support obligations are voluntarily impoverished. Id.

In Wagner I, 109 Md.App. 1 , 674 A.2d 1 , we quoted from our own decision in John O. v. Jane O., 90 Md.App. 406, 423 , 601 A.2d 149 (1992), that: [o]nce a court concludes that a parent is voluntarily impoverished, it must then make findings regarding the factors related to potential income. Both issues are left to the sound discretion of the trial judge. The court’s factual findings will not be disturbed unless they are clearly erroneous, and the rulings based on those findings must stand unless the court abused its discretion. In this regard, we noted in Wagner I that the trial court, in its November, 1994 order, held that Robin had impoverished ⁷²⁵ herself intentionally and of her own free will.

We said that the trial court properly evaluated the facts in characterizing Robin as voluntarily impoverished, stating at page 47 of 109 Md., 674 A.2d 1: Evidence adduced at trial indicated that she freely contracted to work for RKE at a salary equal to one-third of that which she had been previously receiving, when, in actuality, she had experienced little trouble securing a position earning her $60,000 per year following her return to Maryland. Further, Ms. Wagner freely transferred her house to her parents for nominal consideration. It appears, therefore, that she acted voluntarily and intentionally in impoverishing herself____ [PJarents who act so as intentionally to avoid their child support obligations are within the class of persons who are considered voluntarily impoverished under the statute. In so concluding in Wagner I, we observed that the circuit court had imputed an annual income of $59,962 to Robin, which was the average of her reported salaries from 1989 through 1992; that it also concluded from the evidence that Robin has made no diligent effort to obtain employment on a full-time basis and was making every effort possible to avoid paying child support; that Robin was a stockholder, the President, and a member of the Board of Directors of the RKE Corporation, by which she was employed; that Robin was “completely unbelievable”; that Robin’s allegation that she can’t work long hours because of her health was belied by the fact that she logged over 4000 miles driving across the country on two occasions and produced no evidence as to her medical condition; and that her financial statements indicated substantial reductions in her outstanding debts, other than satisfying her child support obligation, including $84,000 paid to her father for a debt allegedly owed to him.

I Prior to the issuance of our mandate on May 6, 1996 in Wagner I, Richard had filed another petition for contempt for ⁷²⁶ Robin’s failure to pay child support as earlier ordered by the trial court. On August 29, 1995, after a hearing at which Robin was represented by counsel, and afforded an opportunity to present evidence, the trial court held that she was in civil contempt for failing to pay child support. It sentenced her to 179 days in the Carroll County Detention Center and set a purge provision of $2433.50 for Robin to obtain her release from the detention center. Robin did not, however, pay the amount of the purge provision, nor did she surrender herself to the detention center.

Instead, she filed a notice of appeal on September 27,1995. On October 3,1995, the trial court issued a body attachment for Rpbin which she promptly challenged,